People v. Williams, Docket No. 1372

• Decision Date: 28 March 1967
• Docket Number: No. 3,Docket No. 1372,3
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Burl WILLIAMS, Defendant and Appellant
• Court: Court of Appeal of Michigan — District of US

Page 245

149 N.W.2d 245

6 Mich.App. 412

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Burl WILLIAMS, Defendant and Appellant.

Docket No. 1372.

Court of Appeals of Michigan, Division No. 3.

March 28, 1967.

Charles A. Robison, Albion, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, John M. Jereck, Pros. Atty., Calhoun County, Marshall, for appellee.

Before QUINN, P.J., and FITZGERALD and HOLBROOK, JJ.

HOLDBROOK, Judge.

The defendant was tried before a jury in the Calhoun county circuit court and was found guilty on July 8, 1965, of felonious assault in violation of C.L.1948, § 750.82 (Stat.Ann.1962 Rev. § 28.277).

On March 19, 1965, the defendant's mother, Mrs. Elsie Williams, telephoned the Michigan state police post in Battle Creek and requested assistance regarding her son, the defendant. At that time, Williams was devoting his attention to the systematic destruction of the furniture and windows in his mother's home. In response to the call, officers Alfred Bland and Wilbur Massey arrived at approximately 7:00 p.m., and, after conferring with Mrs. Williams, attempted to enter the kitchen door of the house. There is no dispute in the testimony as to whether the officers knocked before entering, but in any event their welcome was of short duration. Upon opening the door, officer Bland saw the defendant standing behind a counter with a telephone in one hand and a shotgun in the other. The shotgun was pointed directly at the door through which the officers proposed to enter. Williams said 'back off.' When the officers attempted to open the door further, they were still confronted with the muzzle of the shotgun and the verbal warning was repeated. At this point, the officers retreated.

Shortly thereafter the defendant appeared at the front of the house and voluntarily surrendered. The shotgun was found unloaded inside the house and the defendant handed over to ofoficer Massey several unfired shotgun shells.

Defendant appeals his conviction and raises 2 questions for review hereinafter discussed.

1. Did denial of the defendant's motion to sequester witnesses constitute reversible error?

Immediately after the jury was sworn defense counsel made a motion to separate the witnesses. The reason given for the motion was that cross-examination of the witnesses was a very substantial part of the defendant's case in that defense counsel anticipated important discrepancies in the testimony of the People's witnesses. This motion was denied because the trial judge did not 'really see the grave need for sequestration of witnesses.'

It is well settled that sequestration of witnesses in a criminal trial is discretionary with the trial judge. People v. Sawicki (1966), 4 Mich.App. 467, 145 N.W.2d 236. In People v. Hall (1882), 48 Mich. 482, 487, 12 N.W. 665, 667, the Supreme Court intimated by the following language that perhaps sequestration should be granted as a matter of right.

'There is no difference of opinion among the authorities on the point that such a request, seasonably made, should not be refused. There is some difference as to whether such a refusal, stlanding alone, should necessarily be held illegal so as to require a reversal.'

Subsequent cases, however, have consistently held that the issue is discretionary and not a matter of right. People v. Burns (1887), 67 Mich. 537, 35 N.W. 154; People v. Machen (1894), 101 Mich. 400, 59 N.W. 664; People v. Considine (1895), 105 Mich. 149, 63 N.W. 196; People v. Martin (1920), 210 Mich. 139, 177 N.W. 193; People v. Kongeal (1920), 212 Mich. 307, 180 N.W. 636; People v. Ring (1934), 267 Mich. 657, 255 N.W. 373, 93 A.L.R. 993; People v. Likely (1966), 2 Mich.App. 458, 140 N.W.2d 529; People v. Sawicki, supra.

In People v. Sawicki, supra, 'discretion' was defined in the following terms:

"The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias."

In the case at bar, an examination of the record reveals that the trial testimony of the two police officers was, except for minor variations, substantially the same as their testimony at the preliminary examination. It is true that both officers testified substantially as to identical facts and circumstances, but this does not support defendant's suggestion that each officer tailored his own testimony to fit that of the other. On the contrary, both witnesses were at the scene in the same place and at the same time and it would therefore be unusual if each made different observations. There being no reason to believe that either officer, unconsciously or otherwise, conformed his testimony to reiterate that of the other, an abuse of discretion has not been shown.

2. Is a defendant who is charged with assaulting another with a gun (C.L. 1948, § 750.82 (Stat.Ann.1962 Rev. § 28.277)) entitled to an instruction requiring the jury to return a verdict of not guilty if the gun is found to be unloaded?

The defendant requested the following instruction:

'I instruct you, ladies and gentlemen of the jury, that Burl Williams' act of pointing an unloaded shotgun, if you believe that to be a fact, at Alfred T. Bland is not under our law the offense of aggravated assault as charged in the People's information. Unless Burl Williams was close enough to Alfred T. Bland to use his 12 gauge shotgun as a club, it must, in fact, have been loaded and pointed at Alfred T. Bland with the intent to do him corporal hurt in order to constitute the offense of felonious assault as I have defined it.'

This request was denied and the court instructed the jury in the following manner:...